Law and political domination: Historical observations, conceptual reflections, and some questions for discussion. (21st January 2019)

• Record Type: Journal Article
• Authors: Jansen, Nils
• Is Part Of: International journal of constitutional law. Volume 16:Number 4(2018:Oct.)
• Page Start: 1176
• Page End: 1185
• Publication Date: 2019-01-21
• Subjects: Constitutional law -- Periodicals; 342.005
• DOI: 10.1093/icon/moy097
• Languages: English
• ISSNs: 1474-2640

Abstract

Abstract: This article, in a first step, traces the complex relationship of the law and jurists on the one hand and of political domination and political leaders on the other. It shows that the law historically developed in a significant distance to political domination; and that the shift in perspective of lawyers from traditional informal authorities to the state's new codifications cannot convincingly be explained as a natural consequence of the codification but must be analyzed from the point of view of the legal system. In a second step, the article shows that the idea that the state was the foundation of the legal system and that the law should be based on legislation was developed not by jurists but rather by sixteenth- and seventeenth-century political theorists. This idea was strongly influenced by the experiences of religious controversy and civil wars. The article concludes with a number of questions based on those observations. Those questions are meant to stimulate future research on the complex relationship of the law, the state, and polities.